Major Bob Music v. Stubbs
851 F. Supp. 475
S.D. Ga.
1994
Check Treatment

ORDER

EDENFIELD, Chief Judge.

The Plaintiffs, alleging violations of federal copyright laws, have moved the Court for summary judgment. For the reasons stated herein, the Court GRANTS the Plaintiffs’ motion.

BACKGROUND

The Plaintiffs, music publishers and own­ers of the copyrighted songs at issue, are members of the American Society of Com­posers, Authors and Publishers (“ASCAP”). 1 The Defendant, Gertrude Stubbs, is the sole proprietor of the Buck and Doe Corral in Pearson, Georgia, a local “watering-hole” providing alcoholic and non-alcoholic drinks, snack foods, pool tables, a dance floor, juke­box and live entertainment.

Beginning in 1990, ASCAP repeatedly con­tacted the Defendant in an effort to convince her to purchase a license to perform ASCAP-­copyrighted songs. After numerous letters, phone calls and visits and the Defendant’s persistent refusal to purchase a license, AS-­CAP sent two investigators to the Buck and Dоe Corral. On the evening of December 19, 1992, the investigators noted that a two-­person band performed live renditions of three songs from the ASCAP repertoire. 2

The Plaintiffs subsequently filed this suit, maintaining that the Defendant violated their rights as set forth in the Copyright Act of 1976, 17 U.S.C. § 101 et seq., by publicly performing copyrighted songs without a li­cense to do so. The Plaintiffs seek injunctive relief, statutory damages, costs and attorney fees.

ANALYSIS

I. Standard to be Applied at Summary Judgment

The “purpose of summary judgment is to ‘рierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.CivP. 56 advisory commit­tee’s note). The Court’s analysis ends “where there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law.” Great Lakes Dredge & Dock Co. v. Miller, 957 F.2d 1575, 1578 (11th Cir.1992); Real Estate Fin. v. Resolution Trust Corp., 950 F.2d 1540, 1543 (11th Cir.1992) (both citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). Thus, summary judgment is appropriate where the nonmovant “fails to make a showing suffi­cient to establish the existence of an element essential to that party’s ease, and on which that party-will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; Tidmore Oil Co. v. BP Oil Co./Gulf Prods. Div., a Div. of BP Oil Co., 932 F.2d 1384, 1387-88 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 339, 116 L.Ed.2d 279 (1991). The substantive law governing the action determines whether an element is es­sential. E.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); DeLong Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir.1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1813, 108 L.Ed.2d 943 (1990). “[A] party seeking summary judg­ment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to inter­rogatories, and admissions on file, if any, which it believеs demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2552; see Goree v. Winnebago Indus., Inc., 958 F.2d 1537, 1539 (11th Cir.1992). The movant typically must discharge this burden by producing evidence that negates an essential element of the nonmovant’s claim. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.­1991); Delaney v. St. Paul Fire & Marine Ins. Co., 947 F.2d 1536, 1554 n. 37 (11th Cir.1991). In some circumstances, however, the movant may meet this burden by “point[ing] to materials on file that demon­strate that the party bearing the burden of proof at trial will not be able to meet that burden.” Coats & Clark, 929 F.2d at 608; see Celotex, 411 U.S. at 322-23, 106 S.Ct. at 2552.

Only after the movant sucсessfully dis­charges this initial burden, does the burden shift to the nonmovant to establish, by going beyond the pleadings, that there is a genuine issue as to facts material to the nonmovant’s case. Thompson v. Metropolitan Multi-­List, Inc., 934 F.2d 1566, 1583 n. 16 (11th Cir.1991); see Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 913, 116 L.Ed.2d 813 (1992); Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.­1991). A dispute of material fact “is ‘genu­ine’ ... if the evidence is such that a reason­able jury could return a verdict for the non-­moving party.” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. “Factual disputes that are irrelevant or unnecessary will not be counted.” United States v. Gilbert, 920 F.2d 878, 883 (11th Cir.1991) (citation omitted); see Useden v. Acker, 947 F.2d 1563, 1575 (11th Cir.1991). The nonmovant “must pres­ent affirmative evidеnce in order to defeat a properly supported motion for summary judgment.” Liberty Lobby, 477 U.S. at 257, 106 S.Ct. at 2514; Gilbert, 920 F.2d at 882. If the nonmoving party’s response to the summary judgment motion consists of noth­ing more than mere ‍​​‌‌​‌‌‌​​‌​​‌​​‌‌​‌​​​‌​​​​‌‌​‌​‌‌​‌​​​‌‌​​‌‌​​‍conelusory allegations, then the Court must enter summary judg­ment in the moving party’s favor. Peppers v. Coates, 887 F.2d 1493, 1498 (11th Cir.1989). This means that the nonmovant “must set forth specific facts showing that there is a genuine need for trial,” Johns v. Jarrard, 927 F.2d 551, 555 (11th Cir.1991) (citation omit­ted), and may not rely solely on the plead­ings. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, [then] there is no genuine issue for trial.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512; Johns, 927 F.2d at 556.

In assessing whether the movant is enti­tled to summary'judgment in its favor, the district court must review the evidence and all reasonable factual inferences arising from it in the light most favorable to the nonmov-­ing party. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992); Ryder Int'l Corp. v. First Am. Nat’l Bank, 943 F.2d 1521, 1523 (11th Cir.1991). In assessing the evidence, the Court must avoid weighing conflicting evidence, Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513; Ryder, 943 F.2d at 1523; Brown v. Hughes, 894 F.2d 1533, 1536 (11th Cir.), cert. denied, 496 U.S. 928, 110 S.Ct. 2624, 110 L.Ed.2d 645 (1990); Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.­1986), or making credibility determinations. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513; McKenzie v. Davenport-Harris Fu­neral Home, 834 F.2d 930, 934 (11th Cir.­1987). A mere “scintilla” of evidence sup­porting the opposing party’s position, howev­er, will not suffice. E.g., Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990).

II. Plaintiff’s Motion

A. Copyright Infringement

“The economic philosophy behind the [con­stitutional] clause empowering Congress to grant patents and copyrights is the convic­tion that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors_” Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954). In order to achieve that еnd, Con­gress “grant[ed] valuable, enforceable rights to authors, publishers, etc., without burden­some requirements,” Washingtonian Pub­ lishing Co. v. Pearson, 306 U.S. 30, 36, 59 S.Ct. 397, 400, 83 L.Ed. 470 (1939), among which is the right to sue for infringement. See 17 U.S.C. § 101 et seq. (1988); Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 912 (D.Conn.1980).

In order to establish liability for in­fringement of copyright in musical composi­tions, a plaintiff must prove the following elements:

(1) the originality and authorship of the compositions involved;
(2) compliance with all formalities required to secure a copyright under Title 17, Unit­ed States Code;
(3) that plaintiffs are the proprietors of the copyrights of the compositions involved in the action;
(4) that the compositions were performed publicly [by the defendant]; and
(5) that the defendant had not received permission from any of the plaintiffs or their representatives for such perfor­mance.

U.S. Songs, Inc. v. Downside Lenox, Inc., 771 F.Supp. 1220, 1224 (N.D.Ga.1991); Van Halen Music v. Palmer, 626 F.Supp. 1163, 1165 (W.D.Ark.1986); Boz Scaggs Music, 491 F.Supp. at 912.

The Plaintiffs in this case have met the first three elemente by submitting copies of copyright registration certificates, which con­stitute prima facie evidence of the copyright’s validity. 17 U.S.C. § 410(c) (1988). More­over, the Defendant has not contested the validity or ownership of the Plaintiffs’ copy­rights. (Def.’s Resp. to Pis.’ Mot. for Summ.J. at 4.)

With regard to the fourth element, it is well settled that investigators’ affidavits that are uncontradicted are conclusive proof of performance. Broadcast Music, Inc. v. Larkin, 672 F.Supp. 531, 533-34 (D.Me.­1987); Milene Music, Inc. v. Gotauco, 551 F.Supp. 1288, 1294 (D.R.I.1982). In this case, it is undisputed that live entertainment was provided on the evening of December 19, 1992. Furthermore, the Defendant has nоt offered any evidence to contravene the inves­tigators’ affidavits. The Defendant submit­ted an affidavit by one of the musicians stat­ing that he could “not specifically recall” whether he had performed the songs at issue on the evening of December 19,1992 (Thom­as Aff.), but a statement expressing inability to remember which particular songs were played does not serve to contradict the Plain­tiffs’ sworn statements that such songs were indeed performed.

Additionally, the Defendant’s asser­tion that, if such songs were performed, ‍​​‌‌​‌‌‌​​‌​​‌​​‌‌​‌​​​‌​​​​‌‌​‌​‌‌​‌​​​‌‌​​‌‌​​‍they were not identical to the copyrighted works is unavailing. 3 This case is not a plagiarism case; rather, the infringing conduct at issue here is the unauthorized public performance of the songs. Therefore, a demonstration that the works played were exactly the same as, or substantially similar to, the copyright­ed works is unnecessary. “All that plaintiffs need prove is that their works were per­formed. The degree of similarity to the orig­inal is irrelevant if the work is held out to be a performance of the copyrighted composi­tion.” Ocasek v. Hegglund, 116 F.R.D. 154, 160 (D.Wyo.1987) (quoting George Simon, Inc. v. Spatz, 492 F.Supp. 836, 838 (W.D.Wis.­1980)).

In her response to Plaintiffs’ motion, the Defendant also alleges that the musicians played “for [their] own gratification and not for the entertainment of Defendant’s pa­trons”, (Def.’s Resp. to Pis.’ Mot. for Summ.J. at 5), and that the musicians werе not employees of the Defendant. Such argu­ments that the musicians were independent contractors and that the Defendant did not directly profit from their performances, how­ever, do not absolve the Defendant of liabili­ty.

Defendant’s “no profit” defense stems from 17 U.S.C. section 110(4) (1988), which provides:.

[T]he following are not infringements of copyright:

... (4) performance of a nondramatic liter­ary or musical work otherwise than in a transmission to the public, without any purposе of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers ...

Id. The Court finds that this defense is inapplicable to this case. Indeed, regardless of whether the alleged infringer actually profited from the performance itself, it is well established that “a profit-making enter­prise which publicly performs copyrighted musical compositions is deemed to do so for profit.” U.S. Songs, Inc. v. Downside Lenox, Inc., 771 F.Supp. 1220, 1226 (N.D.Ga.1991) (quoting Gnossos Music v. DiPompo, 13 U.S.P.Q.2d 1539, 1540, 1989 WESTLAW 154358 (D.Me.1989)). There is no dispute that the Buck and Doe Corral is a “profit-­making enterprise.” Furthermore, such an enterprise is considered to be “profit-mak­ing” even if it never actually yields a profit. U.S. Songs, 771 F.Supp. at 1226; Bourne Co. v. Speeks, 670 F.Supp. 777, 779 (E.D.Tenn.­1987) (citing Herbert v. Shanley Co., 242 U.S. 591, 595, 37 S.Ct. 232, 233, 61 L.Ed. 511 (1917) (J. Holmes) (“Whether ... [music] pays or not the purpose of employing it is profit and that is enough.”)) Lastly, the fact that the establishment may not have paid thе performer does not alter the nature of such a profit-making enterprise. Cass County Mu­sic Co. v. Vineyard Country Golf Corp., 605 F.Supp. 1536, 1537 (D.Mass.1985) (“[T]he fact that the guitarist was not employed [or paid] by defendant is legally irrelevant.”)

Importantly, it has long been held that one may be hable for copyright infringe­ment even though she has not herself per­formed the protected composition. Gersh­win Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1161-62 (2d Cir.1971); Van Halen Music, 626 F.Supp. at 1166-67; Boz Scaggs Music, 491 F.Supp. at 913. Thus, “one may be vicari­ously hable if [s]he has the right and ability to supervise the infringing activity and also has a direct financial interest in such activi­ties.” Boz Scaggs Music, 491 F.Supp. at 913 (citing Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir.1963)); Marvin Music Co. v. BHC Ltd. Partnership, 830 F.Supp. 651, 655 (D.Mass.1993). Vicari­ous liability may be imposed even when the controlling individual has no knowledge of the infringement. Van Halen Music, 626 F.Supp. at 1167; Fourth Floor Music, Inc. v. Der Place, Inc., 572 F.Supp. 41 (D.Neb.1983); Boz Scaggs Music, 491 F.Supp. at 913.

As sole owner of the Buck and Doe Corral, the Defendant necessarily has the right and abihty to control the activities at her establishment. And, certainly, as sole proprietor, the Defendant derives a financial benefit from the operation of the establish­ment and ah activities that take place there. Thus, the Defendant may be held individually hable for copyright infringement.

Finally, the fifth element of infringement, lack of permission, is verified by the affidavit of Barbara King, ASCAP’s district manager. (King Aff.) Without a license from ASCAP or any other hint in the record of permission from Plaintiffs, the Defendant had no legal right to authorize, permit or condone perfor­mances of the copyrighted compositions.

Accordingly, because the Plaintiffs have successfully demonstrated a prima facie case, which the Defendant has failed to rebut, the Court finds that the Defendant infringed on the Plaintiffs’ copyrights on the dates and in the manner set forth in the pleadings, and that summary judgment should be granted against her.

B. Statutory Damages

Under the Act, Plaintiffs may elect to receive statutory damages of not less than $500.00 per infringement or more than $20,-­000.00, instead of requеsting actual damages or profits. 4 17 U.S.C. § 504(e)(1). In this action, the Plaintiffs seek statutory damages of $2,000.00 per infringement, or $6000.00 in total statutory damages, which is approxi­mately three times the fee the Defendant would have paid for a license. (Pis.’ Mot. for Summ.J. at 14.) (King Aff.)

In interpreting section 504(c), courts have held that the statute vests the trial court with wide discretion to set damages within the statutory limits. Factors to be considered include: (1) the expenses saved and profits reaped by the defendant in con­nection with the infringements; (2) the reve­nues lost by the plaintiffs as a result of the defendant’s conduct; and (3) the infringer’s state of mind—whether willful, - knowing or merely innocent. Nick-O-Val Music Com­pany v. P.O.S. Radio, Inc., 656 F.Supp. 826, 829 (M.D.Fla.1987); Boz Scaggs Music, 491 F.Supp. at 914. As the Supreme Court stat­ed in F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 73 S.Ct. 222, 97 L.Ed. 276 (1952), one of the principles to be vindicated in awarding ‍​​‌‌​‌‌‌​​‌​​‌​​‌‌​‌​​​‌​​​​‌‌​‌​‌‌​‌​​​‌‌​​‌‌​​‍statutory damages is the deterrence of wrongful conduct:

[A] rule of liability which merely takes away the profits from an infringement would offer little discouragement to in-­fringers. It would fall short of an effective sanction for enforcement of the copyright policy. The statutory rule, formulated af­ter long experience, not merely compels restitution of profit and reparation for in­jury but also is designed to discourage wrongful conduct. The discretion of the court is wide enough to permit a resort to statutory damages for such purposes. Even for uninjurious and unprofitable in­vasions of copyright the court may, if it deems just, impose a liability within statu­tory limits to sanction and vindicate the statutory policy.

Id. at 233, 73 S.Ct. at 225.

The evidence in the record indicates that, from February 1990 to September 1992, AS-­CAP valiantly strove to apprise the Defen­dant of her potential liability under the copy­right laws. Indeed, ASCAP mailed no less than 20 letters to the Defendant, spoke with the Defendant at least 8 times by telephone, and visited the premises on 5 occasions. All of ASCAP’s efforts were rebuffed by the Defendant. (King Aff., Ex. A.) In response, the Defendant contends that she was “not made aware of the mandatory nature of the purposes behind the contacts from ASCAP,” and that “at no point in time were federal statutes concerning copyright laws shown to ... [her] or explained to ... [her] in suffi­cient detail.” (Dei’s Aff.) To the contrary, even a cursory review of the certified letters received by the Defendаnt belie her conten­tions, as the letters make patently clear the Defendant’s potential liability for permitting unauthorized public performances of copy­righted works. (Pis.’ Mot. for Summ.J., King Aff., Ex. A.)

Accordingly, the Court finds that the Plaintiffs’ request of statutory damages of $2000.00 per violation, or a total of $6,000.00—an amount approximately three times what the Defendant would have paid to be licensed—is a modest, just and appropri­atе award under section 504(c)(1).

C. Injunctive Relief

Title 17 U.S.C. section 502(a) pro­vides:

Any court having jurisdiction of a civil action arising under this title may ... grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copy­right.

17 U.S.C. § 502(a) (1988). Pursuant to this statute, Plaintiffs seek an order enjoining the Defendant from performing copyrighted works. “An injunction is properly imposed when there is substantial likelihood of fur­ther infringement....” U.S. Songs, 771 F.Supp. at 1229 (citing Hickory Grove Music v. Andrews, 749 F.Supp. 1031, 1040 (D.Mont.­1990). See also, Pacific and Southern Co. v. Duncan, 744 F.2d 1490, 1499 (11th Cir.1984) (past infringement and substantial likelihood of future infringements normally entitle copyright holder to a permanent injunction), cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985).

In light of the Defendant’s persistent re­fusal to heed ASCAP’s warnings, and her continued operation of the enterprise, the Court finds a substantial likelihood that the Defendant will continue to infringe Plaintiffs’ copyrights if an injunction is not issued. Ac­cordingly, the Court hereby ENJOINS the Defendant from further infringing Plaintiffs’ copyrights. This injunction shall be perma­nent, or shall last “until such time as [Defen­dant obtain[s] a liсense” to perform Plaintiffs’ copyrighted material. International Korwin Corp. v. Kowalczyk, 665 F.Supp. 652, 658 (N.D.Ill.1987), aff'd, 855 F.2d 375 (7th Cir.­1988); Pacific and Southern Co., 744 F.2d at 1499-1500.

D. Costs and Attorney Fees

The Plaintiffs further request reim­bursement for costs incurred in the bringing of this action, including reasonable attorney fees. The Copyright Act provides that the court in its discretion may award costs and attorney fees to the prevailing party:

In any civil action under this title, the court in its discretion may allow the recov­ery of full costs by or against any par­ty- Except as otherwise provided by this title, the court may also award a rea­sonable attorney’s fee to the prevailing party as part of the costs.

17 U.S.C. § 505 (1988).

The Eleventh Circuit has adopted a lenient standard for granting fees, concluding that the statute does not condition an award of costs and fees on the showing of a frivolous suit or a willful infringement:

[w]hile the defendant’s good faith and the complexity of the legal issues involved like­ly would justify a denial of fees to a suс­cessful plaintiff, a showing of bad faith or frivolity is not a requirement of a grant of fees. Rather, the only preconditions to an award of fees is [sic] that the party receiv­ing the fee be the “prevailing party” and that the fee be reasonable.

Original Appalachian Artworks, Inc. v. Toy Loft, 684 F.2d 821, 832 (11th Cir.1982) (cita­tions omitted) (emphasis in original); Sherry Manufacturing Co. v. Towel King of Florida, Inc., 822 F.2d 1031, 1034-35 (11th Cir.1987); Original Appalachian Artworks v. McCall Pattern Co., 825 F.2d 355, 356 (11th Cir.­1987). Additionally, the Eleventh Circuit has held, unlike some circuit courts, that courts should not distinguish between a prevailing plaintiff and a prevailing defendant in аward­ing fees. Sherry Manufacturing Co., 822 F.2d at 1034-35.

The Supreme Court’s recent decision in Fogerty v. Fantasy, Inc., — U.S. -, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994), upheld the approach utilized by the Eleventh, Third, and Fourth Circuits, ruling that prevailing plaintiffs and prevailing defendants must be treated alike under section 505. Further­more, and significantly, the Court rejected the plaintiffs argument that plaintiffs and defendants should be awarded attorney’s fees as a matter of course, absent exceptional circumstances:

The word “may” clearly connotes discre­tion. The automatic awarding of attor­ney’s fees to the prevailing party would pretermit the exercise of that discre­tion. ...
[Attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion. “There is no precise rule or formula for making these determi­nations,” but instead equitable discretion should be exercised....

Fogerty, — U.S. at -, 114 S.Ct. at 1025 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436-37, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40).

Wary of the Supreme Court’s admonition that attorney fees should not be awarded аutomatically, or as a matter of course, the Court turns to various factors considered by other courts in ascertaining whether to award attorney fees under the statute. ‍​​‌‌​‌‌‌​​‌​​‌​​‌‌​‌​​​‌​​​​‌‌​‌​‌‌​‌​​​‌‌​​‌‌​​‍As observed above, the Eleventh Circuit has held that a district court need not find frivo­lousness nor willful infringement, but may take such factors into consideration. The Third Circuit, in a case cited approvingly by the Supreme Court in Fogerty, instructed the district court to examine several nonexclusive factors such as “frivolousness, motivation, ob­jective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to ad­vance considerations of compensation and de­terrence.” Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (3d Cir.1986). In a fre­quently cited district court case, the District Court of Connecticut held that the following factors justified a denial of attorney fees to a prevailing plaintiff: (1) the presence of a complex or novel issue of law litigated by the defendant in good faith; (2) the defendant’s status as an innocent rather than a willful or knowing infringer; (3) bad faith on plaintiffs’ part in prosecuting the action; or (4) a good faith attempt by the defendant to avoid in­fringement. Boz Scaggs Music, 491 F.Supp. at 908. See also, Original Appalachian Art­works, 684 F.2d at 832; Van Halen Music, 626 F.Supp. at 1167; Almo Music Corp. v. T & W Communications Corp., 798 F.Supp. 392, 394 (N.D.Miss.1992); Collins Court Mu­sic, Inc. v. Pulley, 704 F.Supp. 963, 968 (W.D.Mo.1988); Broadcast Music, Inc. v. Niro’s Palace, Inc., 619 F.Supp. 958, 963 (N.D.Ill.1985).

The Court finds that the equities in this case justify the award of attorney fees. The Defendant’s liability is unquestionable on both the law and the facts; the Defendant repeatedly ignored Plaintiffs’ many entreat­ies and warnings that they were in violation of the law; and the Defendant made no attempt whatsoever to avoid infringement, or to resolve this dispute prior to the com­mencement of litigation. Indeed, the record before the Court reveals that the Defendant’s attitude toward securing a license “might best be regarded as cavalier.” Van Halen Music, 626 F.Supp. at 1167.

Plaintiffs’ cоunsel submitted an affidavit establishing that attorney fees incurred by Plaintiffs in the prosecution of this action total $4,021.28, including costs of $279.28. (Klemmer Aff.) The Court observes no rea­son why it should find these fees and costs unreasonable. Accordingly, the Court here­by awards Plaintiffs attorney fees and costs in the amount of $4,021.28.

CONCLUSION

For the foregoing reasons, the Court here­by GRANTS the Plaintiffs motion for sum­mary judgment, and the Clerk of Court is hereby ordered to enter JUDGMENT in fa­vor of the Plаintiffs and against the Defen­dant in the amount of $6000.00 in damages and $4,021.28 in fees and costs. The Defen­dant is permanently ENJOINED from fur­ther infringing Plaintiffs’ copyrights.

SO ORDERED.

Notes

1

. ASCAP, a nonprofit organization, was formed by a small group of composers in 1914

because those who performed copyrighted mu­sic for profit were so numerous and wide­spread, and most performances so fleeting, that as a practical matter it was impossible for the many individual copyright owners to nego­tiate with and license the users and to detect unauthorized uses. [Therefore,] "ASCAP was organized as a clearinghouse for copyright owners and users to solve these problems” associated with the licensing of music.

Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 4-5, 99 S.Ct. 1551, 1554-1555, 60 L.Ed.2d 1 (1979) (quoting Colum­bia Broadcasting System v. ASCAP, 400 F.Supp. 737, 741 (S.D.N.Y.1975)).

As ASCAP operates today, its 55,000 members grant it
nonexclusive rights to license nondramatic performances of their works, and ASCAP is­sues licenses and distributes royalties to copy­right owners in accordance with a schedule reflecting the nature and amount of the use of their music and other factors.... [ASCAP] operatefe] primarily through blanket licenses, which give the licensees the right to perform any and all of the compositions owned by the members or affiliates as often as the licensees desire for a stated term. Fees for blanket licenses are ordinarily a percentage of totаl revenues or a flat dollar amount and do not directly depend on the amount or type of mu­sic used.

Id., quoted in International Korwin Corp. v. Kow­alczyk, 855 F.2d 375, 376 n. 1 (7th Cir.1988).

To protect the compositions within its domain, ASCAP has district offices, and the district man­ager of each office is responsible for contacting establishments in the district where music is played and offering the opportunity to obtain an ASCAP license. When ASCAP discovers that an establishment is playing musical compositions coрyrighted by an ASCAP member, the owner of the business is notified of the copyright infringe­ment and ASCAP offers to license the entity. See, e.g., Halnat Pub. Co. v. L.A.P.A., Inc., 669 F.Supp. 933, 934 (D.Minn.1987).

Almost every domestic copyrighted composi­tion is in the repertory of either ASCAP or of Broadcast Music, Inc., ("BMI”), another non­profit organization which functions much like ASCAP. Broadcast Music, 441 U.S. at 5, 99 S.Ct. at 1555.

2

. Specifically, the songs were: "If Tomorrow Never Comes”, written by Garth Brooks and Kent Blazy; "Heavenly Bodies”, written by Elaine Lifton and Gloria Nissenson; and “Burned Like a Rocket" (a/k/a “Burns Like a Rocket”) by Gary Burr. (Tools Aff., Moses Aff.) (Pl.'s Mot. for Summ.J., Ex. A, B, C.)

3

. Specifically, one of the two band members who performed stated in his affidavit as follows:

Since I do not use printed music or the stage equipment necessary to duplicate the original artist's sound, I improvise by adding my own lyrics, departing from the original lyrics, alter­ing melodies, repeating choruses, or deleting choruses. My performance is similar in title only to popular compositions.

(Thomas Aff.)

4

. Specifically, 17 U.S.C. § 504(c)(1) provides:

(c) Statutory Damages.
(1) ... [T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringe­ments involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, ‍​​‌‌​‌‌‌​​‌​​‌​​‌‌​‌​​​‌​​​​‌‌​‌​‌‌​‌​​​‌‌​​‌‌​​‍in a sum of not less than $500 or more than $20,000 as the court considers just ...

17 U.S.C. § 504(c)(1) (1988).